Fellows and Secretary, Department of Social Services (Social services second review)

Fellows and Secretary, Department of Social Services (Social services second review) [2021] AATA 4626 (14 December 2021)
Division:GENERAL DIVISION
File Number: 2020/8002
Re:Sylvia Fellows

APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member

Date:14 December 2021
Place:Perth

The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 17 November 2020, which affirmed a decision of a delegate of the Respondent, made on 2 July 2020, to reject the Applicant’s claim for disability support pension, is affirmed.
............................[Sgd]............................................
Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the Applicant met eligibility requirement for disability support pension – qualification period – assigning impairment ratings – whether the Applicant suffers from permanent impairments that attract 20 points or more under the Impairment Tables – Impairment Table 1 – Functions requiring Physical Exertion and Stamina – chronic fatigue syndrome – Impairment Table 7 – Brain Function – Applicant found not to have 20 or more impairment points – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 23(1), 26, 94, 94(1)(a), 94(1)(b), 94(3A), 94(3B), 94(3C), 94(5)
Social Security (Administration) Act 1999(Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 6, 6(5), 6(6), Table 1, 7
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – s 7
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Social Services, Guide to Social Policy Law: Social Security Guide
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
14 December 2021
INTRODUCTION

Ms Fellows seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 17 November 2020 (the Reviewable Decision). The Reviewable Decision affirmed an earlier decision made by the authorised review officer (ARO) of Services Australia (Centrelink) dated 2 July 2020, which rejected Ms Fellows’ claim, lodged on 3 May 2019, for disability support pension (DSP).
This matter was heard by the Tribunal on 22 October 2021. Ms Fellows attended the hearing and was represented by Ms Catherine Eagle of Welfare Rights & Advocacy Services. The Respondent was represented by Ms Laura Hinwood of Sparke Helmore Lawyers who participated in the hearing via telephone conference. Ms Fellows gave oral evidence on affirmation and was cross-examined by Ms Hinwood.
With the Tribunal’s approval, Ms Demi Thackrah of Welfare Rights & Advocacy Services attended the hearing as an observer.
The Respondent called Dr Catherine Moore, medical adviser with the Health Professional Advisory Unit (HPAU), as an expert witness. Dr Moore gave oral evidence on affirmation and was cross-examined by Ms Eagle. Ms Fellows called Dr Hugh Derham, general practitioner, as her expert witness. Dr Derham gave oral evidence on affirmation and was cross-examined by Ms Hinwood. Both Dr Moore and Dr Derham participated via telephone conference.
BACKGROUND
Ms Fellows is a 57 year old women and she lodged a claim for DSP on 3 May 2019 (T48).
On 14 June 2019, Ms Fellows’ file was assessed by a psychologist for the purposes of a “Disability Support Pension Medical Eligibility Assessment Recommendation” (the DSP Eligibility Assessment). The assessor recommended that Ms Fellows was “[m]anifestly medically ineligible” for DSP because her conditions were not fully diagnosed, treated and stabilised (FDTS). The assessor states (T50/242–243):
Letter and Medical Certificate by GP Dr Hugh Derham (1/5/19) confirms the above conditions indicating that they have been present since 2016. Reported treatment has been supplements, antimicrobial therapy and pain killers. There is no indication of any specialist interventions which would be expected for the diagnosis of the above conditions. There is no evidence of rheumatologist consult to rule out other underlying conditions. There is no evidence of any pain management or exercise physiology interventions to gradually increase tolerance. There is no evidence of any mental health consults to assist with pain management and general coping with the above conditions. There is also no evidence of any Infectious Diseases Specialist input.
Given the above, the conditions are not considered to be fully diagnosed, treated or stabilised.
On 18 June 2019, Centrelink rejected Ms Fellows’ claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables (T51/244).
Ms Fellows provided further medical evidence and on 19 May 2020 her claim was assessed by a registered nurse for the purpose of a further DSP Eligibility Assessment. The assessor recommended that Ms Fellows was “[m]anifestly medically ineligible” for DSP and that a Job Capacity Assessment (JCA) was not recommended. The assessor states (T54/252–253):
Previous MAT assessment by GRS389 dated 06/04/2020 indicated the client’s medical conditions are considered Not FDTS. Further medical evidence has been provided since previous assessment.
Medical certificate by GP - DR. Derham 20/11/2019 indicates the client has Mast Cell activation syndrome and Encephalopathy. Medical certificate by GP - DR. Derham 20/11/2019 indicates these are temporary conditions. Current medical evidence does not include details of Specialist review or management, or functional impacts.
Medical certificate by GP - DR. Derham 29/07/2019 indicates the client has Chronic fatigue Syndrome, fibromyalgia and multiple active chronic viral infections. Medical report by Occupational and public health Physician – DR. Harper 11/07/2019 does not confirm a diagnosis but indicated the client has debilitating fatigue and muscle pain. There is no current medical evidence to indicate that the client has participated in all reasonable treatment (treatment that is reasonably accessible, regularly undertaken or performed, has a high success rate and where substantial improvement can reliably be expected) for this condition (such as specialist reviews, pain management, rehabilitation and other allied health intervention, as appropriate. Medical evidence provided does not provide sufficient evidence to determine that the claimant has undergone reasonable treatment for her conditions. It is unable to be determined that the conditions are FDTS at this time. It is unable to be determined that the conditions are FDTS at this time. This assessment is considered manifest medically ineligible. A job capacity assessment is not currently recommended.
Additional medical evidence was provided by Ms Fellows and on 17 June 2020, a further assessment by a registered nurse for the purpose of a DSP Eligibility Assessment was undertaken. The assessor recommended that a JCA be undertaken to further assess medical eligibility and an impairment rating if appropriate. The assessor states (T58/430–431):
Previous MAT assessment by MSV114 dated 19/05/2020 indicated the client’s medical conditions were considered not FDTS. Further medical evidence provided since previous assessment Medical certificate by GP - DR. Derham 18/05/2020 indicates the client has Mast cell Activation syndrome and Encephalopathy. Due to the long nature of these conditions they are considered permanent conditions. There is evidence of long-term condition and ongoing specialist review and management
There is evidence of diagnosis, engagement in reasonable treatments and ongoing functional impairment. A JCA is recommended to further assess medical eligibility and apply an impairment rating/s if appropriate.
A JCA was conducted on 24 June 2020. In the JCA Report dated 29 June 2020, the assessor recommended a rating of 10 impairment points under Impairment Table 1 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) in respect of Ms Fellows’ chronic fatigue syndrome (CFS), and found that Ms Fellows had a baseline work capacity of 8-14 hours per week and a capacity for work, within two years with intervention, of 15-22 hours per week (T59/432–439).
On 2 July 2020, Ms Fellows’ DSP rejection decision was affirmed by an ARO who found that, during the qualification period, Ms Fellows’ CFS was FDTS and could only be assigned 10 points under Impairment Table 1 – “Functions requiring Physical Exertion and Stamina” (T60/440–442).
On 22 July 2020, Ms Fellows applied for review of the decision made by the ARO to the AAT1. On 17 November 2020, the AAT1 found that Ms Fellows’ CFS was FDTS and could be assigned 10 points under Impairment Table 1. The AAT1 affirmed the decision under review (T2).
On 4 December 2020, Ms Fellows applied to the Tribunal for a second review (T1). In the application Ms Fellows provided the following reason for claiming the decision was wrong: “as provided with all the medical evidence I am unable to work” (T1/2).
ISSUE
The Tribunal in this matter must decide whether Ms Fellows was qualified for the DSP on the day she lodged her claim or within 13 weeks thereafter. The claim for DSP was lodged with Centrelink on 3 May 2019, and consequently the period for assessing Ms Fellows’ eligibility is from 3 May 2019 until 1 August 2019 (the Qualification Period). The Tribunal relies on Centrelink’s records to ascertain the Qualification Period.
This includes the assessment of whether Ms Fellows suffered from a physical, intellectual or psychiatric impairment or impairments; if so, whether the impairment(s) were FDTS and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and whether Ms Fellows had “a continuing inability to work” (CITW).
LEGISLATIVE FRAMEWORK
The Tribunal is required to consider the provisions of the Impairment Tables; Social Security Act 1991 (Cth) (the Act); the Social Security (Administration) Act 1999 (Cth) (the Administration Act); and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Tribunal must also able to have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (644–5)).
Section 94 of the Act contained the qualification criteria for DSP and states in part:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)     the person has a continuing inability to work;
(ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)     if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis; notes omitted.)
The term “severe impaired” is defined under s 94(3B) of the Act as follows:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(Original emphasis; notes omitted.)
The term “actively participated” is defined under s 94(3C) of the Act as follows:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(Original emphasis; notes omitted.)
Section 7 of the POS determination provides the requirements of active participation and states in part:
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
subsection (6) is satisfied in relation to the person and the program of support…
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)the duration of the program of support was less than 18 months; and
(b)the person completed the entire program during the relevant period.
…
(Notes omitted.)
“Work” and “programme of support” is defined under s 94(5) of the Act as follows:
“work” means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
“program of support” means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis; notes omitted.)
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states, in part:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b) are function based rather than diagnosis based; and
(c) describe functional activities, abilities, symptoms and limitations; and
(d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
(Notes omitted.)
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, fully treated and fully stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
(Notes omitted.)
EVIDENCE
The Tribunal had the following material before it:
·the “T-Documents” (T1–T67, pp 1–532);
·medical reports of Dr Hugh Derham, dated 19 July 2021 (Exhibit A1);
·medical report of Dr Hugh Derham, dated 13 May 2021 (Exhibit A2);
·Neuropsychological Assessment Report of Dr Kelly Gough, clinical psychologist/neuropsychologist, dated 2 March 2021 (Exhibit A3);
·Applicant’s Statement of Issues, Facts and Contentions, dated 18 October 2021 (Exhibit A4);
·Secretary’s Statement of Issues, Facts and Contentions, dated 30 August 2021 (Exhibit R1);
·HPAU report, dated 18 June 2021 (Exhibit R2); and
·oral evidence of the Applicant, Dr Derham and Dr Moore.
CONSIDERATION

Ms Fellows lodged her claim for DSP on 3 May 2019 (T48) and her claim must be assessed based on her medical conditions as at the date of claim or within 13 weeks thereof. The Respondent contends that the period for the Tribunal’s consideration is 3 May 2019 to 1 August 2019 (Exhibit R1, para 4.4). The Tribunal agrees and notes that the Qualification Period is not in dispute in this matter.
In relation to the importance of the Qualification Period, the Respondent relevantly cites authorities which affirm the principles that medical reports that come into being after the Qualification Period will only be relevant to the extent that they refer to the claimant’s condition during the Qualification Period, and that should circumstances have changed subsequent to the Qualification Period, a fresh DSP claim may be appropriate (Exhibit R1, paras 4.5–4.7).
The Respondent accepts that Ms Fellows had impairments such that s 94(1)(a) of the Act was satisfied during the Qualification Period (Exhibit R1, para 4.19). The Respondent also accepts that Ms Fellows’ CFS was FTDS as at the Qualification Period (Exhibit R1, para 4.20). Having regard to the medical evidence presented before the Tribunal, the Tribunal agrees.
Ms Fellows submits that her conditions are permanent and attract 20 points under “Table 1 – Functions requiring Physical Exertion and Stamina” (Table 1), and at least 10 points under “Table 7 – Brain Function” (Table 7) (Transcript/5).
The Respondent contends that the functional impairment resulting from Ms Fellows’ CFS attracts a maximum of 10 points under Table 1 (Exhibit R1, para 4.22) and a maximum of five points under Table 7 (Exhibit R1, para 4.27).
Assessment of impairments under the Impairment Tables
The evidence before the Tribunal indicates some fluctuations in the level of Ms Fellows’ impairments. Accordingly, in its considerations the Tribunal has regard to Rule 11(4) of the Impairment Tables which requires the Tribunal to assign ratings which reflect “…the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate” (T3/45).
There are some inconsistencies and differences in the application of the Impairment Table criteria to Ms Fellows’ impairments by Dr Derham and Dr Moore. The Tribunal respects Dr Derham’s knowledge and expertise in treating Ms Fellows and his expertise in the management of her conditions such as CFS. However, Dr Derham, by his own evidence, has very limited experience with the application of the Impairment Tables whilst Dr Moore detailed her very extensive expertise and experience over some nine years. Where there are inconsistencies and where appropriate, the Tribunal has preferred the opinion of Dr Moore over Dr Derham.
Chronic Fatigue Syndrome
The Respondent contends that Table 1 is the most appropriate Table under which Ms Fellows’ impairment can be rated. As introduction to the Table states: “Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina” (Exhibit R1, para 4.21), the Tribunal agrees.
The Respondent, for the purposes of this review, submits that assessment of Table 7 is also relevant in this matter and states: “Table 7 – Brain Function is relevant in that it is to be used where the person has a permanent condition resulting in functional impairment related to a neurological or cognitive function” (Exhibit R1, para 4.21), and makes submissions accordingly before the Tribunal. This review is of course de novo, however, the Tribunal notes that the previous decision makers did not assess Ms Fellows’ impairments under Table 7.
In her oral evidence related to the question of the appropriateness of assessment under Table 7, Dr Catherine Moore, medical adviser with HPAU, stated that she felt it would be double counting to consider an impairment under Table 7, but also opined that a five point rating could be given if assessment is done under Table 7 (Transcript/11).
After careful consideration, the Tribunal is of the opinion that Ms Fellows’ assessment of impairments arising from her CFS should be done under both the Tables being Table 1 and Table 7.
Table 1 – Functions requiring Physical Exertion and Stamina
In a letter to Dr Derham dated 10 October 2018, Ms Teisha Standen, accredited exercise physiologist, reported: “[o]ver the past six weeks, her [Ms Fellows] physical health has improved to now allow her to regain most activities as she would normally do (ie, walking her dog twice a day, food shopping, house work and social outings)” (T40/192). Ms Standen provided a further letter in similar terms on 20 November 2018 (T42/194).
Dr Andrew Harper, occupational and public health physician, reviewed Ms Fellows on 11 July 2019, and in a report stated that she had greatly reduced stamina and had discontinued gardening and modified her activities of daily living. Dr Harper opined that Ms Fellows “level of disability is of moderate severity” (T52/246–247). However, Dr Harper does not comment on whether Ms Fellows, in general, would require assistance of another person to walk around a shopping centre or from the shopping centre carpark into the shopping centre.
On a JCA conducted on 24 June 2020, the assessor found that Ms Fellows’ CFS gave rise to a moderate functional impact on activities requiring physical exertion or stamina, and recommended an impairment rating of 10 points under Table 1 (T59/435). The JCA report, dated 29 June 2020, noted that: “[t]he client reported that her symptoms plateaued in the early part of 2019 and have since remained unchanged” (T59/434).
The Tribunal notes that the JCA assessors have the expertise, experience and specialised knowledge appropriate for the conduct of JCAs for DSP purposes, and therefore, without evidence to the contrary, the Tribunal accepts the JCA’s recommendation.
In her oral evidence to the AAT1 on 17 November 2020, Ms Fellows stated that she (T2/12–13):
(a)manages lighter domestic duties such as cooking and vacuuming;
(b)needs help with heavier tasks such as carrying laundry and moving furniture;
(c)drives a car and can do her own shopping, making frequent trips to the shops as she can only manage light loads;
(d)can walk for 25-30 minutes on her good days; and
(e)exercises when she can and likes to walk in the water.
In a neuropsychological assessment report, dated 2 March 2021, Dr Gough noted that Ms Fellows reported no major concern in completing her daily activities and felt confident in completing her own shopping (Exhibit R1, Annexure B).
In a report dated 19 July 2021, almost two years after the Qualification Period, Dr Derham notes that Ms Fellows’ household activities such as light gardening which includes sweeping leaves or watering plants is limited to 10 minutes, and light housework such as sweeping or washing-up is limited to 20 minutes. Dr Derham opines that these limitations correspond to 20 points under Table 1, and expresses wonder that a Centrelink assessor have awarded only 10 points to these limitations (Exhibit R1, Annexure A).
Ms Fellows, during her oral evidence, told this Tribunal that (Transcript 31–37):
(a)she lives with her younger son who pays the bills under an agreement they have, but she uses her computer to pay her personal bills such as licence renewals and vehicle registration online;
(b)she does her housework on separate days in short periods, such as light hoovering one day, another day the bathroom, the laundry on the next day etc;
(c)she has trouble sleeping;
(d)she can cook, but does not do so on days when she is in a lot of pain;
(e)she drives and makes trips to the local shopping centre, and makes 30 minute trips for appointments with Dr Derham;
(f)she remembered that during her JCA in June 2020, she told the assessor that her symptoms had plateaued in early 2019 and had remained the same since; and
(g)her engagement with exercise therapy (para 42 above refers) “taught me [Ms Fellows] how to manage my chronic fatigue” and that she was able to take her dog out, go to the shops and do housework that she could manage.
Dr Moore told the Tribunal that she had reviewed her report dated 18 June 2021 (Exhibit R2) recently and confirmed that its contents were true and correct. Dr Moore stated: “I was asked to review this case because up until that time, each stage, she’d been found to score a total of 10 impairment points for the condition of chronic fatigue syndrome”. Dr Moore further stated that she found the condition to be FDTS as at 3 May 2019, and that in her opinion Ms Fellows “could score a total of 10 points from Table 1 functions requiring physical exertion and stamina” (Transcript/10–11).
Dr Moore told the Tribunal that she had a total of nine years of experience in her role in the HPAU, and that she had looked at possibly 200 to 300 DSP claims each year (Transcript/10).
In his oral evidence Dr Derham confirmed that the contents of the medical certificates dated 13 May 2021 (Exhibit A2) and both of his letters dated 19 July 2021 (Exhibit R1, Annexure A) were correct. In response to questions from Ms Eagle and cross-examination by Ms Hinwood, Dr Derham told the Tribunal (Transcript 18–25):
(a)he has been interested in and treated conditions like CFS and fibromyalgia since 2004 and the majority of his work is in this area;
(b)he fairly recently took a history of the impact of Ms Fellows’ condition and recorded that she was “very limited in what she can do”;
(c)in terms of treatment, Ms Fellows was one of 10 per cent of his patients who progress a very small distance, plateaued and stopped;
(d)he agreed that he was not an expert in applying the Impairment Tables having only applied them in medical reports a handful of times, but considered them pretty straightforward and obvious;
(e)he agreed that Ms Fellows’ level of impairment and functional capacity as assessed in late 2018 and early 2019 is similar to that of today, and that Ms Fellows had more ability to complete tasks in the period from November 2018 to July 2019 than at the time of his letter dated 19 July 2021, although he considered “the variations are trivial compared to somebody who’s fit for work”. He said that she was capable of housework, but that did not mean she could do it all in one day.
After careful consideration, the Tribunal concludes that Ms Fellows does not satisfy the Table 1 descriptors for “severe functional impact on activities requiring physical exertion or stamina” which warrants 20 points under Table 1. The evidence shows that Ms Fellows’ impairments do impact her ability to perform the tasks described, however, it does not indicate that Ms Fellows is “unable” to perform any of the following tasks as described in Table 1:
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)use public transport without assistance; or
(iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening).
Therefore, it follows that Ms Fellows’ impairment resulting from her CFS cannot attract 20 points under Table 1. The Tribunal notes the Respondent’s contention that “the evidence does not indicate the Applicant is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours” (Exhibit R1 para 4.24).
The Tribunal is satisfied that the evidence indicates that Ms Fellows meets descriptors for “moderate functional impact on activities requiring physical exertion or stamina” contained under Table 1 and accordingly she can be assigned 10 points.
Table 7 – Brain Function
At the outset, the Tribunal notes and has regard to the “Introduction to Table 7” which contains the following instructions:
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o    a report from the person’s treating doctor;
o    a report from a specialist health practitioner (e.g. neurologist, rehabilitation physician or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain);
o    results of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG));
o    results of cognitive function assessments.
In a report dated 11 July 2019, Dr Harper noted that Ms Fellows experienced memory loss and muddles words (T52/246).
In a report dated 2 March 2021 (Exhibit R1, Annexure B), Dr Gough noted the following:
(a)Ms Fellows reported occasional confusion around word finding or details such as dates when speaking. She further reported an increased reliance on recipes when cooking and occasionally forgets to take her medications.
(b)Ms Fellows’ auditory attention; sustained and divided attention; and working memory were average.
(c)Ms Fellows speed of information processing was a notable area of weakness.
(d)Ms Fellows language functions were average. Her general fund of information, vocabulary, abstract verbal reasoning, semantic and phonemic fluency were average.
(e)Ms Fellows nonverbal skills was her area of weakness. Her visuoconstructional and visuospatial skills and nonverbal fluid reasoning were low average.
(f)Ms Fellows memory and recall were average, with visual memory being below average.
(g)Ms Fellows was within the normal range relative to her peers and there were no deficits seen in executive functioning during the assessment.
A report by Dr Derham dated 19 July 2021 (Exhibit R1, Annexure A), noted that Ms Fellows met all descriptors under Table 7 (but did not specify the impairment level) and that if she had the option of daily assistance and supervision “she would not leave fresh meat in the car for 24 hours…as well as other mistakes of forgetfulness, lack of concentration ability, decreased ability in decision making and problem solving etc”.
During the hearing, Ms Fellows provided oral evidence relevant to the Tribunal’s considerations under Table 7 (Transcript/32–37):
(a)Ms Fellows said that she sometimes spreads out completing paperwork because of the intensity of filling in the forms.
(b)Ms Fellows said that she sometimes forgets to take medications, and makes lists of the things that she has to do.
(c)Ms Fellows confirmed that she was still able to drive, and that she had never suffered a stroke or a brain injury from a car accident or similar event.
The Tribunal notes that on four occasions during her examination-in-chief by Ms Eagle (Transcript/31, 32, 33), Ms Fellows asked that part of a question be repeated when those questions contained more than one element. In the Tribunal’s experience, such requests are not particularly unusual.
The JCA report dated 29 June 2020 noted: “[t]here is no evidence of formal testing of cognitive functioning having been performed” (T59/436).
In her oral evidence, Dr Moore expressed her reservations about the use of Table 7 in relation to CFS and stated (Transcript/13):
Table 7 is more used for possibly a brain injury, possibly, in a car accident or a large stroke or any number of other conditions relating to the brain, rather than chronic fatigue syndrome. But definitely 20 points is given, at times, when there’s clear evidence that the person is severely impaired.
Dr Moore accepted that fatigue is probably decreasing Ms Fellows’ ability to function with regard to her memory. However, in commenting on whether Ms Fellows might be assessed as having a severe impairment under Table 7, Dr Moore said (Transcript/13):
In terms of 20 points for Table 7, the person really has to be really very severely impaired. They must need frequent, at least, once a day assistance and supervision, which Ms Fellows is not receiving that. She’s also able to manage her own affairs, she’s not got any nominee managing her affairs and she’s still got an email address and does her own shopping and driving which would be suggestive, by itself, that she’s not got severe impairment of brain function.
The Tribunal concludes that an impairment rating of 20 points cannot be assigned for Ms Fellows’ CFS as at the Qualification Period in 2019. For 20 points to be assigned there must be “a severe functional impact resulting from a neurological or cognitive condition”. The overarching requirement for all the descriptors for 20 points under Table 7 is that “[t]he person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following”. There is no corroborating evidence that Ms Fellows received or needed this level of supervision from another person on a daily basis.
For a person to be assigned an impairment rating of 10 points under Table 7, there must be “a moderate functional impact resulting from a neurological or cognitive condition”. The person needs “occasional (less than once a day)” assistance with day-to-day activities. In Ms Fellows’ case, there is no corroborating evidence that she satisfies the relevant descriptors for moderate functional impact.
The evidence indicates that Ms Fellows is able to complete most day-to-day activities without assistance but has mild difficulties with memory (for example leaving meat in her car, forgetting to take medication) and comprehension (for example needing to spread the completion of complex forms over a number of sessions). Therefore, the Tribunal finds that Ms Fellows can be assigned five points under Table 7 for this mild functional impact on her brain function.
Overall Impairment Rating
At the Qualification Period, Ms Fellows’ medical conditions generated 10 points under Table 1 and five points under Table 7, resulting in a total rating of 15 points.
CITW
In Exhibit R1, the Respondent provides a comprehensive analysis of the CITW requirement relevant to Ms Fellows’ DSP claim. The Respondent contends that Ms Fellows did not have a CITW during the Qualification Period (Exhibit R1, paras 4.32–4.50). Ms Fellows concedes that “unless she is found to have a severe impairment within the definition…then she won’t qualify for DSP as she hadn’t completed the program of support requirements by the time – in the 36 months prior to lodging her claim” (Transcript/6).
As the Tribunal has found that at the Qualification Period Ms Fellows did not have a severe impairment and that her impairments did not attract an impairment rating of 20 points or more, she does not satisfy s 94(1)(b) of the Act, and is therefore not qualified for DSP. In these circumstances the Tribunal is not required to consider whether or not Ms Fellows has a CITW.
CONCLUSION
For the reasons detailed above, the Tribunal finds that Ms Fellows’ impairments do not attract an impairment rating of 20 points or more under the Impairment Tables. Therefore, Ms Fellows does not satisfy s 94(1)(b) of the Act and was not qualified for DSP as at the Qualification Period.
DECISION
The Reviewable Decision, being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal, dated 17 November 2020, which affirmed a decision of a delegate of the Respondent, made on 2 July 2020, to reject Ms Fellows’ claim for DSP is affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member.

..........................[Sgd]..............................................
Associate
Dated: 14 December 2021

Date of hearing: 22 October 2021

Counsel for the Applicant: Catherine Eagle

Solicitors for the Applicant: Welfare Rights & Advocacy Services

Counsel for the Respondent: Laura Hinwood

Solicitors for the Respondent: Sparke Helmore Lawyers

[2021] AATA 4626

14 December 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	22 October 2021
Counsel for the Applicant:	Catherine Eagle
Solicitors for the Applicant:	Welfare Rights & Advocacy Services
Counsel for the Respondent:	Laura Hinwood
Solicitors for the Respondent:	Sparke Helmore Lawyers